Ellison v. State, 76-1195
| Decision Date | 23 August 1977 |
| Docket Number | No. 76-1195,76-1195 |
| Citation | 349 So.2d 731 |
| Parties | Roger Lee ELLISON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
Before BARKDULL, HAVERFIELD and NATHAN, JJ.
Roger Lee Ellison was charged by information with assault with intent to commit murder and with shooting into an occupied dwelling. He was tried by jury, found guilty of shooting into an occupied dwelling, convicted and sentenced to 10 years imprisonment, with one year to be served in the county jail and 9 years probation. He was acquitted of the charge of assault with intent to commit murder. As one of his points on appeal, Ellison contends that the trial court erred in permitting the prosecutor to cross-examine him about his failure to offer exculpatory statements, and to comment thereon during closing argument.
The record reflects that the prosecutor did not introduce any direct testimony to the effect that Ellison exercised his right to remain silent while in custody. In fact, the prosecutor avoided any inquiry into this area during his direct examination of the arresting officer. Rather, it was defense counsel who first opened the door to this line of questioning. The defendant testified in his own behalf, and during his direct examination, defense counsel asked Q: All right, now, when you called the police, did you indicate that your shotgun had gone off at that time?
The defendant then testified concerning his cooperation with the police, stating that he called the police and voluntarily showed his weapons to the officer.
Then, on cross-examination, the prosecutor continued the line of inquiry opened by defense counsel, by asking whether the defendant said anything to the officer about the shotgun discharging accidentally, and during closing argument he commented upon the defendant's failure to mention this fact to the police. In our opinion, the prosecutor's questions were not improper in light of the fact that it was defense counsel who first opened...
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